Owners’ Counsel of America Files Amicus Brief in "Rails-to-Trails" Takings Case Supporting Supreme Court Review for Landowner

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In its amicus brief filed today, OCA calls upon the Supreme Court to uphold property rights by reviewing the decision of the Tenth Circuit Court of Appeals and resolve a lower court split concerning whether the federal government has an “implied reversionary interest” in railroad rights of way crossing privately-owned lands under a 1875 Congressional Act.

If the Tenth Circuit’s decision is allowed to stand, similarly-situated landowners across the country will be subjected to different federal rules, based solely on where their land is located.

Today, the Owners’ Counsel of America (OCA) filed an amicus curiae brief in support of the landowner in Brandt v. United States (12-1173) urging the United States Supreme Court to review a Tenth Circuit Court of Appeals decision in United States v. Brandt, 2012 WL 3935613 (C.A.10 (Wyo.)) which erroneously found that the federal government retained an “implied reversionary interest” in railroad rights of way granted under an 1875 Congressional Act. The Tenth Circuit, contrary to every other court that has considered the issue, held that that the United States, rather than the private landowner, acquired ownership of the land when the railroad was abandoned.

The Tenth Circuit acknowledged a “circuit split” in its opinion, noting a divergence from decisions in the Seventh Circuit, Federal Circuit and Court of Federal Claims all of which concluded the federal government did not have a reversionary interest in railroad rights of way when the underlying land had been conveyed to private owners. “If the Tenth Circuit’s decision is allowed to stand, similarly-situated landowners across the country will be subjected to different federal rules, based solely on where their land is located,” said Robert H. Thomas. Thomas, a Director with Damon Key Leong Kupchak Hastert in Honolulu and the Hawaii attorney-member of OCA, prepared the brief.

In 1875, Congress adopted the General Railroad Right-of-Way Act of 1875 (“1875 Act”), 43 U.S.C. §§ 934-939. The 1875 Act allowed Congress to grant railroads right of way access through publicly owned lands. Congress later passed the Act of March 8, 1922, 43 U.S.C. § 912, which permitted the conveyance of title to the land under these railroad rights of way to homesteaders whom the adjacent property had been granted by land patent. The 1922 Act provided that upon abandonment by the railroad, ownership of the right of way transferred to the private landowner. In Great Northern Ry. Co. v. United States, 315 U.S. 262 (1942), the Supreme Court clarified that the rights of way granted under the 1875 Act were easements for the limited purpose of railroad use. In Great Northern and subsequent cases, however, the Court has not provided a specific definition of the term “easement” in the context of the 1875 Act which opened the door to the current litigation.    

The Brandt family acquired 83 acres in Albany County, Wyoming by land patent from the U.S. Forest Service in 1976. The land was bisected by an 1875 Act railroad right of way, later abandoned by the railroad in 2003. In 2005 under the “Rails-to-Trails” statute (National Trails System Act, 16 U.S.C. § 1241), the Forest Service issued a notice of intent to convert the abandoned railway crossing Brandt’s and neighboring properties into a recreational trail. This should have triggered Brandt’s claim for compensation under the Fifth Amendment’s Takings Clause, but the federal government then sought to confirm that it —and not Brandt — owned the land. It sued Brandt, seeking a ruling that when the government granted the right of way to the railroad, it retained an implied right to recover ownership if the railroad ever ceased operating (D.Wyo., No. 06cv184).

“In Brandt, it appears that the Government instituted a quiet title action as part of a new strategy to wipe out an entire class of rails-to-trails cases by securing a ruling that owners of land subject to the 1875 Act rights of way do not actually own the property under the right of way and, therefore, do not have a claim,” said Thomas.

“Over the last decade, the Government has been unsuccessful in a number of theories argued in “rails-to-trails” takings cases in the Federal Circuit and Court of Federal Claims,” explained Mark M. Murakami, Thomas’s partner at Damon Key Leong Kupchak Hastert and co-author of the brief. “Perhaps, the U.S. decided to switch tracks in Brandt in hopes of finally prevailing.”

OCA’s brief contends that if the Government’s strategy to redefine the property rights of landowners owning land subject to the 1875 Act is successful, the Government will eliminate an entire class of takings claims without justification. The brief further argues that the Tenth Circuit’s conclusion that the term “right of way” as used in the 1875 Act signified the conveyance of a fee interest to the railroads with an implied right of reversion to the United States not only conflicts with the Supreme Court’s ruling in Great Northern, but also strays greatly from the common law meaning of the term. For the U.S. to advocate a departure from the common law understanding of “right of way” with regard to the 1875 Act, it must demonstrate that Congress intended to change the common law meaning. Yet, the legislative history surrounding the enactment of the 1875 Act suggests Congress had no such intent.    

“The high court’s review is extremely important in this case, as it may affect thousands of property owners nationwide,” said Damon Key attorney Bethany C.K. Ace, who joined Thomas and Murakami on the brief. “If the Federal Government is allowed to redefine the common law meaning of right of way in Brandt with impunity, it will no longer be liable to pay just compensation to those landowners.”


The Owners’ Counsel of America is a nationwide network of experienced eminent domain attorneys dedicated to protecting the rights of private property owners large and small, locally and nationally, and to advancing the cause of property rights. The lawyers affiliated with OCA are in private practice in nearly every state and represent private landowners against federal, state, and local governments, utilities, transportation and redevelopment authorities and other entities that may be armed with eminent domain power. For more information or to locate an eminent domain lawyer in your state, please visit http://www.ownerscounsel.com.

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Catherine Newman
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